2018 (7) TMI 1130 - AT - Service Tax

Refund of Service tax paid by mistake - rejection on the ground of limitation and also on the ground that appellants have failed to produce documentary evidence to support their claim that they have constructed flats by themselves without engaging any other person. Held that - The claim of ₹ 1,00,000/-, ₹ 35,535 & ₹ 4184/- is barred by limitation. The said finding passed by the authorities below is upheld - Appellant is not eligible for refund of the said amounts - demand of this part hit by limitation. With regard to the contention that appellant has not filed necessary documents to establish that the construction activities were done by themselves without engaging any other person, we deem it fit to remand the matter to the adjudicating authority who shall consider this aspect on the basis of evidence furnished by appellant in de novo proceedings and decide the matter afresh. The impugned order is partly upheld and partly remanded to the adjudicating authority.

Summary

Issues:
Refund claim rejection on grounds of limitation and lack of documentary evidence supporting self-construction of residential complex.

Analysis:
The appellants filed a refund claim for a specific amount, contending they mistakenly paid service tax for a construction service they were not liable for. The claim was rejected by the original authority and upheld by the commissioner due to issues of limitation and lack of evidence supporting self-construction without engaging others. The appellant argued that certain amounts were beyond the limitation period and not pressed, while the remaining sum was eligible for refund within the limitation period.

The appellant's counsel highlighted that all necessary documents were submitted but not considered by the authorities. Additionally, the appellant provided a C.A. certificate to address the issue of unjust enrichment. The respondent supported the findings of the impugned order, emphasizing the limitations and lack of evidence.

Upon review, the Tribunal noted the grounds for the show cause notice, focusing on limitation and lack of proof for self-construction without engaging others. The appellant cited a relevant case where a refund was granted for similar circumstances. The Tribunal found that the authorities did not exceed their scope by considering the merit of the claim and unjust enrichment, as the appellant's written submissions were taken into account during the process.

The Tribunal ruled that certain amounts were indeed barred by limitation and upheld the findings of the authorities on this matter. However, the balance amount not affected by limitation was deemed eligible for refund. Regarding the lack of documentary evidence supporting self-construction, the Tribunal decided to remand the matter to the adjudicating authority for a fresh review based on the evidence provided by the appellant. The authority was instructed to determine the eligibility for refund and assess the applicability of the case law cited by the appellant to the current case.

In conclusion, the impugned order was partly upheld and partly remanded to the adjudicating authority for further consideration. The appeal was partly allowed, subject to the terms set forth by the Tribunal.